Licence Appeal Tribunal File Number: 22-013917/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Lillian Blanco
Applicant
and
Wawanesa Insurance
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Harlan Pottins, Counsel
For the Respondent:
Ken Yip, Counsel
Heard by way of written submissions.
OVERVIEW
1Lillian Blanco, the applicant, was involved in an automobile accident on July 31, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Insurance (“Wawanesa”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding with the application on the basis that she failed to comply with section 44 of the Schedule?
RESULT
3The applicant is barred from proceeding with her claim for the income replacement benefit (“IRB”) in the amount of $207.22 per week from September 25, 2022 to date and ongoing.
4The applicant is barred from proceeding with the treatment plan in the amount of $4,371.81 for other goods and services.
5The applicant is barred from proceeding with the treatment plan in the amount of $1,553.72 for chiropractic services.
6The applicant may proceed with the treatment plan for in the amount of $999.66 ($3,437.46 less $2,440.80 approved) for social work services.
ANALYSIS
Background
7On February 25, 2022, the respondent denied the OCF-18 in the amount of $4,371.81 and requested that the applicant attend an insurer’s examination (“IE”) on May 2, 2022 with Ms. Linda Cottrell. On May 1, 2022, the respondent informed the applicant that the assessment centre notified them that she did not make herself available for the IE. The respondent advised her that if she wished to have the assessment rescheduled, then she would need to contact them and provide a reasonable explanation for why she failed to make herself available for the IE.
8On July 26, 2022, the respondent denied the OCF-18 in the amount of $1,553.72 and requested that the applicant attend an IE on September 19, 2022 with Dr. Julian M.R. Mathoo. On September 22, 2022, the respondent informed the applicant that the assessment centre notified them that she did not make herself available for the IE. The respondent advised her that if she wished to have the assessment rescheduled, then she would need to contact them and provide a reasonable explanation for why she failed to make herself available for the IE.
9On September 1, 2022, the respondent wrote to the applicant regarding the income replacement benefit. She was informed that she would need to attend IEs with Dr. Julian M.R. Mathoo on September 19, 2022, Dr. Verity J. John on September 29, 2022, Ms. Tracey Latimer on October 5, 2022 and October 13, 2022, Dr. Yedishtra Naidoo on October 21, 2022 and Mr. Vincent Yip on October 24, 2022. On September 22, 2022, the respondent informed the applicant that the assessment centre notified them that she did not attend the IE with Dr. Mathoo. The respondent cancelled the remaining IEs due to the non-attendance.
Parties’ positions.
10The respondent submits that they provided sufficient reasons and full details in the notices for each of the insurer examinations (“IEs”). The applicant has failed to attend the scheduled IEs on many occasions without any reasonable explanation. The applicant did not provide any submissions.
The law
11Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
12The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:
(1) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
(a) the medical and any other reasons for the examination;
(b) whether the attendance of the insured person is required at the examination;
(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
13Section 44(9)2. sets out the rules for an in-person insurer examination:
(2) If the attendance of the insured person is required,
(a) the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,
(b) the insured person and the insurer shall, not later than five business days before the day scheduled for the examination, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person’s medical condition, and the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.
14Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.
15Given the above provisions, the Schedule is clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance.
16To be clear, the respondent must first prove that a Notice of Examination complies with section 44(5) of the Schedule in order for an applicant to be statute-barred from proceeding under section 55. In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit in dispute and any section it relies upon.1
17It is well-settled that the insurer’s medical and any other reasons should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. The “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision on whether to attend the IE.
18Moreover, it is trite law that boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute as no reasons at all. Reasons must be meaningful in order to permit the insured person to decide whether or not to challenge the insurer’s determination.
19I note that according to Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”), “the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial.” [my emphasis added]. Defining with precision an unsophisticated person is a challenging task; however, the Court’s direction in Smith clearly recognizes that greater accessibility of an insured person to the informational content of the denial notice is of paramount importance and must necessarily account for the variety of persons and backgrounds who may make claims for accident benefits.
20Accordingly, Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what they mean when read by an unsophisticated person. In my view, this means the notice at the very least should explain what the insured person’s medical conditions are and why, for example, those conditions do not justify removal from the Minor Injury Guideline. An individual might not understand why their medical conditions are considered to be minor if they are not provided with more context. By providing this information, the insured person will have a better understanding of the insurer’s determination. It is then that the consumer protection mandate of the Schedule is achieved.
21Therefore, the notice requirements set out in section 44(5) should be strictly construed and the notice should be closely examined to ensure it complies. If the respondent’s notice does not comply with section 44(5), an insurer cannot rely on the severe remedy available in section 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.
The notices of examination (“NOEs”) dated February 15, 2022, July 26, 2022 and September 1, 2022 are compliant.
22The NOEs for the IRB, the OCF-18 in the amount of $4,371.87 and the OCF-18 in the amount of $1,553.72 provided detailed information regarding the applicant’s conditions and impairments. For example, it was noted that there were no obvious signs of a decrement in mental energy levels (including attention and concentration). She did not demonstrate any impulsive behaviours. She was able to demonstrate a full range of motion through all planes of movement and that her soft-tissue injuries were resolved.
23The NOEs also provided information regarding the assessors. The NOEs specified that the applicant’s attendance was required. Information about the date, time and location of the IE is provided. The NOEs were clear and sufficient to allow an unsophisticated person to make an informed decision to attend the IE or dispute it because they included all of the information required under section 44(5). The applicant has not put forth any submissions to challenge the sufficiency of the information provided in the NOEs. In my view, the NOEs complied with the requirements set out in the Schedule.
OCF-18 in the amount of $999.66 ($3,437.46 less $2,440.80 approved)
24I have reviewed the evidence and find that an insurer’s examination was never scheduled for this treatment plan. Therefore, the preliminary issue is not applicable to this treatment plan in dispute. As such, this treatment plan will proceed to the substantive issue hearing.
Does section 55(2) apply?
25Section 55(2) of the Schedule permits the Tribunal to allow an insured person to apply for dispute resolution despite being non-compliant with section 44. Section 55(3) of the Schedule provides that the Tribunal may impose terms and conditions on any permission granted.
26I decline to exercise my discretion under these sections because the applicant has not put forward a reasonable explanation for her non-attendance at the IEs. Her counsel declined to provide submissions regarding her non-attendance because the applicant is now agreeable to attend the IEs.
27Just as the insurer has a duty in good faith to adjust the claim and provide the applicant with the medical and other reasons why the IE is required, I find that the applicant has a duty to cooperate with the respondent where the IE notice is compliant. Failing to attend the rescheduled IEs frustrated the respondent’s ability to assess the applicant.
ORDER
28For the reasons above, I find that the applicant is barred from proceeding before the Tribunal with issues #1, 2(ii) and 3 listed in the Case Conference Report and Order (“CCR/O”) dated August 11, 2023.
29Issue #2(i) listed in the CCR/O will proceed to the substantive issue hearing.
30Except for the above, all previous orders remain in force and effect.
Released: September 21, 2023
___________________________
Tavlin Kaur
Adjudicator
Footnotes
- The Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 considered the Tribunal’s reconsideration decision of B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT), which in turn [1] The Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 considered the Tribunal’s reconsideration decision of B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT), which in turn applied 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)(“T.F.”). The Court found no basis to intervene as the decision was within the reasonable range of outcomes. In T.F, Executive Chair Lamoureux repeated her comments from M.B. in paragraph 19 in relation to medical and any other reasons.